One gap between the law’s demands
and those of morality that combatants confront all too frequently is the order
to fight in an unjust war.I will refer
to such soldiers as unjust combatants, by which I mean those ordered to fight for
a political community without a moral right to wage the particular war in
question.[1]Most contemporary discussions of the rights
and responsibilities of unjust combatants defend one of the following three
positions.The first, familiar to most
from Michael Walzer’s account of just warfare, claims that all but the highest
ranking combatants lack the ability to assess the justice or injustice of a
given war.The reason for this is that
they are subject to coercion (or the threat thereof) and manipulation which
renders them incapable of forming a judgment on the matter.[2]Since combatants cannot be expected to act as
responsible agents when it comes to assessing the justice of a war, it follows
that they have no duty to do so, and that they should not be held responsible
for the fact that they unjustly wage war.

The second position, defended by
Jeff McMahan among others, rejects Walzer’s depiction of combatants and argues
instead that all combatants do have at least some ability to assess the justice
or injustice of a given war.[3]Since they can form a judgment on the matter,
which is obviously one of great moral importance, it follows that they have a
duty to do so.Moreover, McMahan argues
that they have a duty to act on that judgment, which distinguishes this
approach from the third one I describe below.Whether, and to what degree, unjust combatants should be held morally
responsible for failing to recognize the impermissibility of the war in which
they fight, or for their failure to act on the judgment that the war is unjust,
depends on a range of factors that will vary from case to case.There may also be good reasons not to hold
unjust combatants legally responsible for participating in an unjust war, even
if they bear full moral responsibility for having done so.Still, unlike Walzer, who fully excuses
combatants for the injustice of their war by arguing that they should not be
viewed as responsible agents when it comes to assessing the justice or
injustice of going to war, McMahan excuses combatants (when he does so) because
of various factors that limited or impaired their ability to reason well.

The third approach, advocated by
writers such as David Estlund, shares with the second the claim that unjust
combatants have at least some ability to assess the justice or injustice of a
given war, but it departs from that approach in denying that combatants should
always act on their own judgment.[4]Rather, if they are subjects of a state with
a morally justifiable claim to political authority (henceforth, a legitimate
state), then they have a moral duty to defer to the state’s judgment of the
war’s justice, even if they believe (rightly) that the state’s judgment is in
error.[5]Given such a duty, it follows that unjust
combatants should not be held morally responsible for their participation in an
unjust war.

Most of this paper consists of a
sympathetic critique of David Estlund’s defense of this third approach: in
short, how the legal command of a legitimate state can make it not only morally
permissible but morally obligatory to act in ways that one (rightly) believes
wrongs others.But since talk of a moral
duty to wrong others will likely strike many as a clear contradiction – a
logical impossibility – I will begin with a brief attempt to clarify the
position to be defended.

Estlund writes that

under
the right conditions, even though the victim is wronged by the unjustly warring
side, the soldier on that side is nevertheless morally obligated (and so
morally permitted) to follow all normally binding orders – those that would be
binding at least if the war were just.…Even
when the killing wrongs the person [the innocent victim], the person doing the
killing is not always acting wrongly.[6]

The
key to squaring this circle lies in the attribution of the wrong to the
state.If an unjust combatant waging war
on behalf of a legitimate state kills his victim as part of an effort to comply
with his legal superiors’ command, then he does not act wrongly.Rather, the state acts wrongly in commanding
him to fight in what is, in fact, an unjust war.Thus it is the state that is the proper
object of judgments of responsibility for the wrongful killing; i.e. the proper
object of blame, punishment, and claims for reparations.Needless to say, this depiction of who bears
responsibility for wrongdoing stands in need of a lengthy defense, and though
some of the arguments in the remainder of this paper contribute to such an
exercise, other questions remain unaddressed.For example, I make no effort to investigate the ideas of collective
agency and collective responsibility that seem to be entailed by the claim that
a legitimate state, but not its military personnel, act wrongly when they wage
(what is in fact) an unjust war.In
suggesting that the state, but not the soldier, wrongs the innocent victim, I
only aim to enable the reader to see past what may at first seem a clear and
insurmountable barrier to an argument for a moral duty to follow orders in an
unjust war.

Estlund’s Defense of a Duty to
Follow Orders in an Unjust War

Estlund argues that officials
have a moral duty to obey a legal order, even if they think (rightly) that the
commanded act is an unjust one, if (and only if?) the following conditions are
met:

1)The particular act (act-token) is
of a type (act-type) that is justifiable under certain conditions, even if
those conditions are not actually met in the case at hand.

2)The order is the result of a
process that those subject to it have good reason to believe tends to track the
truth.That is, the process is one that
tends to result in commands to perform particular acts only in cases where the
conditions sufficient (and perhaps necessary) to justify those acts actually
obtain.

3)Those subject to the order have
good reason to think that those issuing the order genuinely believe that the
conditions sufficient (and perhaps necessary) to justify the commanded act do
obtain in this case.

4)Given the fact, or the
possibility of, reasonable disagreement over what the truth is, and who knows
it (i.e. who can claim to be a moral expert), the procedure leading ultimately
to the command to perform such acts must be one that can be defended to all
reasonable points of view.

The
following example, taken from Estlund, illustrates his claim and perhaps
generates some intuitive support for it.

Consider a criminal trial that
results in the conviction of an innocent man, despite the fact that the trial
procedure is a fair one, and that all those who participate in it make a
conscientious effort to properly discharge their roles in that procedure.Or, in a different but equally relevant
version of the example, the trial results in an unjustly harsh sentence, one
disproportionate to the moral seriousness of the crime for which the prisoner
has been convicted, or to the good to be achieved by imprisoning the convicted
person.In both cases, the jailer
(rightly) believes that compliance with the jury’s (or the Court’s) order entails
wronging the prisoner.[7]Assuming that the jailer could free the
prisoner, and that he has no other moral reasons not to do so, is the jailer
permitted, or even obligated, to act on his own judgment in this case or must
he instead act as the Court commands?

Estlund maintains the latter, and
offers the following points in defense of his claim.First, the legally required act in question
is not a token of a type that is never morally justifiable.Rather, it is just that in this case the
jailer believes that one or another of the conditions that must be met in order
for that act (imprisonment for a certain number of years) to be justified is
not met.Second, the jailer has good
reason to believe that the procedure resulting in the prisoner’s conviction and
sentencing have a tendency to track the truth; that is, to convict all and only
the guilty, and to give them an appropriate punishment.Finally, given the possibility of reasonable
disagreement over the guilt or innocence of the accused, and the morally proper
response to him should he be found guilty, trial by a jury drawn from his
fellow citizens is the only procedure for settling these disputes that can be
defended to all reasonable points of view.[8]Against such a background, were the
jailer to act on his own judgment rather than deferring to the Court, he would
be implicitly asserting his moral superiority to his fellow citizens.That is, embedded in the jailer’s judgment
that the Court has erred is a claim to moral expertise (or at least relative
superiority) which, Estlund claims, the jailer cannot defend.Put the other way around, the jurors can
reasonably contest the jailer’s claim to know better than they do what morality
requires or forbids in this case.[9]Given that, in circumstances characterized by
reasonable disagreement over what morality requires, the jailor cannot
reasonably challenge the use of a fair and responsibly conducted jury trial to
determine what the state ought to do to a person accused of a crime, it follows
that the jailer has a duty to obey the Court’s order even if he (rightly)
believes it to be mistaken.In short, if
an agent (or official) is given a command arrived at via a process with a
tendency to “get it right” morally speaking, that responds appropriately to the
fact of reasonable (moral) disagreement, and that commands an act that would be
just were things as those giving the command genuinely believe them to be, then
that agent has a duty to carry out the command.

Estlund contends that the same
argument applies even when the legally ordered act in question involves
killing, be it the execution of a person (wrongly) sentenced to death, or a
lethal attack on an enemy combatant in an unjust war.[10]Of course, commands to go to war are not
issued by a jury.Estlund maintains,
however, that there is a suitable analog in the guise of an adequately
democratic state, one whose institutions constitute a process of political
deliberation and decision-making that has both some tendency to “get it right”
morally speaking and that responds appropriately to the fact of reasonable
disagreement.Given the role that the
institutions of a democratic state play, directly and indirectly, in the
process that leads ultimately to the issuance of a judgment that a war is
justifiable, those the democratic state commands to fight in the war have a
duty to do so, even if they think (rightly) that the war is, in fact, unjust.

With a clear understanding of
Estlund’s argument for a duty to follow unjust legal orders hopefully in hand,
I want to examine in greater detail the conditions under which such a duty
obtains, the relationship between those conditions, and the contribution that
each makes to justifying a duty to defer to the judgment of a legitimate
(democratic) state.

Consider the first condition: the
particular act must be of a type that is justifiable under certain conditions,
even if those conditions are not actually met in the case at hand.A soldier might disagree with the state’s
judgment that a given war is just on three different grounds.He might dispute the state’s factual claim
that the conditions sufficient (and perhaps necessary) to justify going to war
have been met.Alternatively, or in
addition, he might dispute the state’s understanding of one or more of those
normative conditions.For instance, he
may think the state’s interpretation of just cause mistaken, rejecting its
claim that a future but not imminent threat, or an imminent threat, or even
massive human rights violations perpetrated against a population with no
special relationship to the state he serves, can contribute to the moral case
for going to war.Finally (or, again, in
addition), the soldier may accept the state’s factual claims and share its
understanding of the criteria that justify going to war, yet disagree with the
state’s application of those criteria to those facts.He may dispute the state’s claim that the war
will be proportional, or that sufficient effort has been put into alternative
responses (i.e. that the criterion of last resort has been met), or that an
internal armed conflict in some other state has risen to the level of
genocide.

The first kind of dispute is
clearly addressed by Estlund’s requirement that the commanded act (token) be of
a type it can be morally justifiable to perform.After all, the soldier accepts that if the
world is as the state claims it is, then going to war is justifiable; he merely
rejects the state’s claim that, as a matter of fact, the conditions sufficient
to wage just war are met.The first
condition in Estlund’s argument also appears to address the third kind of
dispute described above.In this kind of
case, the soldier grants the justice of acts of a particular type, such as wars
that are proportional and for which there is a just cause, but disputes the
state’s judgment that the particular war it wishes to wage will be a token of
this type; for instance, that the war will be proportional.

With regard to the second type of
dispute, however, the requirement that the act be a token of a type that can be
justifiable contributes nothing to the argument that the soldier has a duty to
obey the lawful commands of a legitimate state, even if he thinks (rightly)
that the commanded act is unjust.The
reason for this, obviously, is that the soldier believes that the commanded act
is one that can never be morally justifiable.Estlund clearly seems aware of this third possibility; indeed, he
explicitly formulates his thesis so that the duty to obey is conditional on the
commanded act being of a type that can be morally justifiable, and the only
just cause for war he mentions is one in response to aggression (presumably
because he thinks the justice of a war is uncontroversial in such cases).Nevertheless, the possibility, indeed,
probability, of disagreement over the very criteria that suffice to justify
going to war suggest that if this first condition really does constrain the
scope of the duty to fight in (what is in fact) an unjust war, the scope of
that duty may be quite narrow.These
disputes center not only on what counts as a just cause for war, but also the
sort of factors that should and should not figure in calculations of
proportionality, and who has a claim to the authority to engage in a particular
war (e.g. individual states, multi-lateral institutions, or the United
Nations).Recent academic literature, as
well as that written for a broader audience (e.g. in newspaper opinion
columns), is rife with evidence of such disagreements.In practical terms, then, Estlund’s first
condition may well contribute very little to the case for a duty to obey orders
to fight in (what is actually) an unjust war.

One possible response to this
challenge is to claim that Estlund’s argument only establishes in the abstract
when it is the case that a soldier has such a duty, and not how a soldier (or
anyone else) can determine whether he has a duty to obey an unjust command in a
particular case.If the act type is
truly just (though the act token will not be), the soldier has a duty to obey
commands to perform it, even if he mistakenly believes the contrary.To make this move, however, is to give up the
aim of offering soldiers practical guidance; that is, to help them determine
whether they ought to obey a command to fight in a war whose justice they
question.

A second possible response would
be to replace the claim that the legally required act be a token of a type the
soldier believes to be just with the weaker claim that it be one he thinks it
reasonable to believe is just.[11]On the one hand, this response significantly
broadens the range or number of cases in which the first condition for a duty
to obey an unjust command will be met.For example, a soldier might find reasonable the state’s judgment that
preemptive wars are justifiable, even if he also thinks it false.Consider, too, the following case of an order
to join in an armed humanitarian intervention.A soldier believes that the widespread and massive violation of non-citizens’
basic human rights does not provide a just cause for war, but he admits (at
least to himself) that he is not particularly confident in that judgment.In addition, though he shares his state’s
understanding of what the ad bellum
criterion of proportionality requires, he also believes that the intervention
in question will not be proportionate, a judgment in which he is quite
confident.On Estlund’s account, it
appears that the first judgment (that wars of the type in question can never be
just) liberates him from a duty to follow orders, while the second judgment
does not (since he disputes the token but not the type), even though he is much
more confident in the second judgment than the first.This conclusion feels somewhat odd: one can
imagine the soldier saying “I have my doubts about the justice of humanitarian
intervention, but the real reason I think this war will be unjust is because it
will be disproportionate.”Better, perhaps,
to argue that the soldier should obey unless he finds the state’s judgment
unreasonable, while allowing that the object of the judgment can be either the
state’s judgment of the facts of the case, or its judgment of the conditions
sufficient to justify going to war, or its application of those conditions to
those facts.

On the other hand, the
replacement of the belief that the commanded act is of a type that is just with
the belief that it is one the state reasonably but mistakenly thinks just may
raise difficulties for the epistemic condition Estlund claims must be met in
order to justify a duty to follow unjust commands.The state might consistently draw reasonable
conclusions when it comes to going or not going to war without ever getting it
right (either objectively, or in the soldier’s eyes).How, then, should we interpret the condition
that the order to go to war be issued by a process (or an institution) with a
tendency to get it right?If we alter
the epistemic condition as well, so that the process must have only a tendency
to reach reasonable (but not necessarily correct) conclusions, then while it
may not become entirely superfluous, the epistemic condition will likely
contribute very little to the case for the soldier’s duty to defer to the
state’s judgment.Or at least that is so
given a capacious understanding of what counts as a reasonable judgment, which
Estlund defends elsewhere.[12]

Interestingly, the substitution
of ‘reasonable’ for ‘just’ in Estlund’s fist condition makes no difference to
the democratic condition for a duty to follow unjust commands.Estlund claims that mutual subjection to an
adequately democratic decision procedure is morally required in cases where
people disagree over which person’s moral judgment is (more likely to be) the
correct one.That issue remains even
among agents that all grant the reasonableness of their opponents’ views,
though they also think them false.

The point bears repeating in a
bit more detail.Soldiers may have good
reason to think that (some of) their superiors are better able to reason
through the moral and factual issues involved in determining whether a given
war is just than are the soldiers themselves.Their officers and elected leaders have greater access to, and
appreciation for, relevant facts, a more detailed and subtle understanding of
the moral criteria for waging just war, and a more developed and refined
capacity for moral judgment (e.g. greater sensitivity to the various
considerations in play, and how much weight each should carry), or so the
soldiers may (rightly) believe.Nevertheless, even if some of the soldier’s legal superiors have greater
expertise than others with respect to determining the justice of a proposed
war, soldiers may have a difficult time identifying who the experts are.[13]Second, even if they (rightly) feel confident
that they have identified those with the greatest claim to expertise, Estlund
claims that others can (and likely will) reasonably disagree with that
judgment.In light of such reasonable
disagreement, no person or group can sustain the claim to an exclusive right to
rule on the basis of the fact (if it is one) that they are more likely to get
it right, morally speaking, than are any others.The inability to make such an argument entails
that all enjoy a claim to equal authority, one recognized (only?) in adequately
democratic political institutions.It is
the need to respect others’ claim to equal authority, if their views are
reasonable, that does (nearly) all the work in justifying soldiers’ duty to
fight in a war they (rightly) believe to be unjust.

The analysis of Estlund’s
argument thus far supports the following conclusion: a soldier should obey an
order he believes to be unjust if and only if (a) he thinks the (implicit)
claim that the order is just a reasonable one, even if he also thinks it
mistaken, and (b) the order arises from a procedure that constitutes a (or
perhaps the only) morally justifiable response to reasonable disagreement over
which agent’s moral judgment is most likely to be correct.Though this argument does not entirely
dispense with truth, since some beliefs will be not only false but
unreasonable, it does not make much of democratic institutions capacity to
identify it.

Epistemic Arguments for
Democratic Authority and the Particularity Challenge

Despite
the reservations expressed in the previous section, suppose we grant that the
tendency of democratic decision procedures to get it right when it comes to
waging only just wars makes a significant contribution to the case for
soldiers’ duty to fight in what they (rightly) believe to be an unjust war. It does not follow necessarily that a soldier
should defer to the judgment of the democratic state that employs him regarding
the justice of a particular war, rather than that of some other democratic
state.This is particularly so if when
it comes to assessing the justifiability of going to war, the soldier has
reason to think that: (a) the democratic decision procedures employed by
another state do a better job of tracking the truth than do those of the
soldier’s state, and/or (b) that in this particular case officials of the
soldier’s state are more likely to suffer from bias and conflicts of interest
than are the officials of some other adequately democratic state.So for example, suppose that in 2003 the
U.S., France and Sweden were all governed via adequately democratic decision
procedures with a tendency to go to war only when they were justified in doing
so.Why should a U.S. soldier defer to
the judgment of the U.S. government regarding the (moral and legal)
justifiability of invading Iraq, rather than that of France or Sweden?In light of the history of Iraqi-U.S.
relations since the early 1990s, the emotionally charged atmosphere following
the 9/11 terrorist attacks, and the long-lived and close connections between
some very high ranking officials in the U.S. government and oil companies that
stood to profit enormously from a friendlier Iraqi government, he would have
had good reason to worry about the impact of various biases and conflicts of
interest on the judgment of the U.S. government regarding the justifiability of
war with Iraq.This soldier would also
have had some reason to suspect French political officials of bias, given
France’s perennial resentment of the world’s sole hyperpower.But he might
also have had reason to believe that with respect to the morality and legality
of invading Iraq, the French government’s judgment was less likely to be biased
than was the judgment of the U.S. government.To my knowledge, the soldier would have had no reason to suspect Swedish
officials of suffering from any bias or conflict of interest, nor any reason to
think that the truth-tracking quality of Swedish political institutions was far
inferior to that of U.S. political institutions.It appears, then, that on epistemic grounds
the soldier should have deferred to Sweden’s judgment that an American-led
invasion of Iraq would be unjust, and perhaps France’s as well, rather than
obeying an order issued by his legal superiors to join in that invasion.

The reader might protest that the
U.S. government had access to intelligence that the Swedes lacked regarding the
Iraqi military and its biological, chemical, and nuclear weapons activities and
plans.Even if that is true, and even if
the intelligence had turned out to be far more accurate than it was, it would
not necessarily follow that the soldier had more reason to defer to the
judgment of the U.S. than to that of Sweden.This is so because the justifiability of invading Iraq turned not just
on factual questions (e.g. did the Iraqi’s have an on-going nuclear weapons
research program?) but also on normative ones, such as whether preventive war,
or even preemptive war, is morally (or legally) justifiable, and whether
(morally and/or legally) the invasion required a new authorization by the
U.N.With respect to these questions, I
suggest that a U.S. soldier in 2003 would have had reason to think the Swedes
more likely to get it right than the Americans (even if, in fact, the Swedes
got it wrong and the Americans got it right).

As I noted above, it is not clear
how much work the epistemic criterion – that is, the tendency of a democratic
decision procedure to track moral truth – does in justifying a state’s claim to
authority.Rather, most of the justificatory
work seems to be done by the requirement that political justification be
acceptable to all reasonable points of view.As the discussion of the imprisonment example made clear, were the
jailer to act on his own (private) judgment rather than deferring to the
Court’s, he would be implicitly making a claim to moral expertise that he could
not justify to all reasonable points of view.Or in other words, given that the Court’s judgment was a reasonable one,
the jailer could not justify acting on his own judgment rather than deferring
to the Court.Might the necessity of
being able to publicly justify his action to all reasonable points of view
provide the basis for arguing that a soldier in the U.S. military ought to
defer to the U.S. government’s judgment regarding the justice of war with Iraq,
rather than to the Swedish government’s judgment?I do not see how it does so.The soldier does not privilege his own
judgment regarding the justice of invading Iraq over that of all other agents,
nor does he implicitly claim any moral expertise.Rather, he defers to the judgment of a
democratic decision procedure, which is precisely what Estlund argues agents
ought to do in cases where there is reasonable disagreement over the morally
proper course of action.Of course, the
soldier does act on his own judgment regarding which democratic decision
procedure is most likely to get it right on this particular issue.But Estlund already acknowledges that each
individual must judge for himself or herself whether the state meets those
criteria necessary to justify its claim to authority.It is not clear why that inquiry should not
also include determining whether some democratic state other than the one that
claims the agent as a subject is more likely to track the moral truth
(generally, or in this particular case).

It might be thought that this
line of argument is beside the point; the U.S. soldier should obey the U.S.
government’s command to fight in (what is actually) an unjust war because he
has a legal obligation to do so, and no legal obligation to guide his conduct
according to the Swedish government’s judgment that the war is unjust.This won’t do, however, since the question at
issue is whether the soldier has a moral duty to do what he has a legal duty to
do.

Perhaps the most promising basis
on which to argue that a U.S. soldier has a duty to obey the U.S. government,
but not the Swedish government, is that he has voluntarily joined the U.S.
armed forces and not the Swedish ones.By agreeing to obey all lawful orders issued by his superiors, the
soldier places himself in a special relationship vis-à-vis the U.S. government,
one that he does not have to Sweden.Note, first, that this argument establishes a duty to obey a state’s
command to wage (what is actually) an unjust war only for those who voluntarily
join that state’s armed forces.Some
further argument will be necessary to show that conscripts also have such a
duty, and even among putative volunteers it may be that only those whose
decision to enlist is informed and made against a background of reasonable
options actually acquire a duty to obey the lawful orders of the state in whose
armed forces they serve.Second, consent
may obviate the requirement that a state be democratic in order to enjoy
legitimate authority.It is not
typically the case that one agent’s consent to do as another directs depends on
that person’s command being one that is justifiable to all reasonable points of
view.Perhaps it is different in the
case of consent to rule by a state or political community.But if not, and if the case for democratic
authority rests almost entirely on the requirement of public justification,
then it follows that consent can generate a particularized duty of obedience
regardless of a state’s democratic credentials.[14]

Third, most theorists maintain
that one cannot acquire a duty to act immorally.Given a duty not to facilitate murder, a
voluntary agreement to lend a criminal assassin the use of your gun is void ab initio, and so creates no duty
to lend the gun or to compensate the assassin for failing to do so.Of course, our question concerns what a
soldier ought to do when he draws a different conclusion regarding the justice
of a war from the one reached by his state.Recognizing that he can have no duty grounded in consent to act
immorally, the soldier should act on whatever judgment he has reason to believe
is more likely to be correct.If that is
the case, however, then it seems that a U.S. soldier ordered to join in the
invasion of Iraq ought to act on the Swedish government’s judgment that such a
war would be unjust, at least if the foregoing argument regarding the
likelihood of bias and conflicts of interest has merit.Even consent, then, may not provide a
solution to the problem of particularity.This point should not be overdone, however.It is possible, and perhaps even likely, that
in some cases the soldier’s own state will be the one he has most reason to
believe will judge correctly the justice or injustice of a given war.In those cases the soldier does have a
consent-based duty to obey his legal superior’s commands, even if (a) his
state’s judgment that war is justified in this case turns out to be mistaken,
and (b) the soldier believed this to be the case (though he also believed that
his own judgment on the matter was more likely to be mistaken than his state’s
judgment).Notice, however, that the
combatant’s duty is not grounded in any special relationship he has to his
state; rather, it follows from a contingent fact about the state’s relative
epistemic superiority.

On Orders Not to Fight in a Just
War

Thus far I have assumed that what is at issue is a
combatant’s duty to obey a legal order to fight in what he rightly believes to
be an unjust war.I want to bring this
discussion to a close by considering the opposite case; that is, a situation in
which a combatant is ordered not to
engage in what would be a just war.If
states never have a duty to go to war, but only in some cases a right to do so,
then a situation like this is of considerably less moral interest than the one
to which I have devoted the rest of this paper.This is so because in refusing to fight a war that he has a right, but
not a duty, to wage, an agent does not wrong anyone.Suppose, however, that states have a
Samaritan duty to go to war if there is good reason to believe that it is
practically necessary to prevent a great injustice.By ‘a Samaritan duty’ I mean one that an
agent must discharge only if he can do so at a reasonable cost to his own
interests, while by ‘a great injustice’ I mean to indicate only the gravest of
those injustices that provide a just cause for war.For my purposes, large-scale genocide and
ethnic cleansing count as great injustices, while the seizure of a portion of a
state’s territory, with relatively little harm done to its inhabitants or its
natural and built environments, does not.If such a duty exists, what should a combatant do in a situation where
he and a certain number of his comrades in arms are in a position to initiate
an armed humanitarian intervention, and he believes (rightly) that his state
has a moral duty to carry out that intervention, but his state orders him not
to do so?

On the one hand, Estlund’s
argument may have the same implication in this case as it does in a case where
the state orders a soldier to fight in (what is actually) an unjust war.If the state’s judgment has been reached via
a process with some tendency to track the moral truth, while also recognizing
the equal right of all its citizens to determine (indirectly) what the state
ought to do, then the combatant ought to comply with that judgment even if he
(rightly) believes it to be mistaken.On
the other hand, Estlund does acknowledge the possibility of an exception to the
principle that an official in the service of a legitimate state has a duty to
obey its commands.Specifically, if the
legal official has first-hand knowledge of the order’s injustice, if he knows
“with as much certainty as life allows” that obeying the order will result in
the wrongful treatment of the victim, then perhaps he is permitted (or even
obligated) to disobey it.[15]Estlund seems to suggest that no such
situation could arise with respect to the decision to initiate a war, but I
want to suggest one case that might prove him wrong, namely that of the United
Nations Assistance Mission for Rwanda (UNAMIR) in the weeks and days leading up
to the Rwandan Genocide.

On January 11th, 1994, General
Romeo Dallaire, the military commander of U.N. forces in Rwanda, sent a fax to
his superiors at the United Nations.[16]In it he described in some detail the
preparations that those aligned with the Hutu Power movement were making for an
extermination campaign aimed at Tutsis and tens of thousands of Hutus judged to
be opposed to, or simply insufficiently supportive of, the movement’s political
goals.He also reported his intention to
carry out a raid on an arms cache members of the Hutu Power movement had
created in anticipation of their genocidal attack.Dallaire believed that he was already
authorized to carry out this raid under his existing rules of engagement, and
remarks made by Kofi Annan, then the head of all U.N. peacekeeping operations,
before a U.S. Congressional committee only a few months later would seem to
corroborate Dallaire’s belief.Nevertheless, that same day (?) Dallaire received a fax from U.N.
headquarters, sent under the name of Kofi Annan and signed by his deputy Iqbal
Riza.In it they forbade him from
carrying out the raid, and more generally, from taking any action to prevent
what Dallaire believed to be a looming genocide, other than sharing what he
knew with the Hutu president of Rwanda, Habyarimana, which Dallaire (and,
probably, his superiors) knew would be a wholly ineffective response.[17]On many subsequent occasions, Dallaire has
stated that with the troops at his disposal at that time he could have done
much to mitigate the subsequent deaths of hundreds of thousands of Rwandans,
especially had he been permitted to move against agents of the Hutu Power
movement months before the genocide began.Our question, then, is this: was General Dallaire morally permitted, and
perhaps even obligated, to disobey his legal superiors’ order not to initiate
an armed intervention, or was he instead morally required to obey this command
even though he (rightly) thought it required him to act unjustly?

What would General Dallaire have
needed to know if he were to be justified in initiating an armed intervention
to prevent (or at least mitigate) the ensuing Rwandan genocide, in
contravention to his legal orders?Various facts about the organization and intentions of those that
instigated the genocide, of course, as well as facts about the ability of the
troops at his disposal to prevent or at least contain it, and the risks they
were likely to confront if they attempted to intervene.But as I argued earlier, normative judgments
play at least as important a role in settling whether an agent ought to go to
war as do factual judgments.Thus
General Dallaire would have had to make a judgment regarding the existence of a
Samaritan duty to use force (if necessary) to forestall a genocide.Perhaps he should have concluded that the
existence of such a duty was a matter of reasonable disagreement, with the implication
that he ought to defer to the judgment of the political body employing him (or
at least its adequately democratic member states, especially Belgium, France
and the U.S., who were the primary democratic states concerned with events in
Rwanda).Yet on the basis of hundreds of
public statements that the world should never again stand-by while genocide occurs,
the existence of the Convention on the Prevention and Punishment of Genocide, and
other such evidence, he might just as well have reasoned that no reasonable
agent would deny the existence of a duty to prevent or limit genocide if it
could be done at a reasonable cost.[18]Certainly many events after the Rwandan
genocide began, such as the efforts by a number of states including the U.S. to
deny that what was happening in Rwanda was a genocide, for fear of the legal
and moral consequences that would follow subsequent to such an admission, and
later remarks by many officials echoing Madeline Albright’s claim (as U.S.
Secretary of State) that “we – the international community – should have been
more active in the early stages of the atrocities in Rwanda,” suggest that
Dallaire could have drawn such a conclusion.[19]Note the crucial point here, namely the
assertion that Dallaire would have been right to conclude not only that there
exists a Samaritan duty to prevent genocide, but also that it would be
unreasonable for anyone to deny it.Without this last claim, on Estlund’s account of legitimate authority Dallaire
would not have been morally justified in acting on his own judgment, rather
than deferring to the U.N. and/or its member states (or at least its adequately
democratic member states).If true,
however, then given the facts as he knew them, Dallaire would have been
justified in disregarding the command to refrain from any act of armed
intervention aimed at preventing genocide.

The foregoing argument seeks to
provide a justification for Dallaire privileging his own judgment over that of
the political body he serves on the grounds that agents occasionally enjoy such
insight into the truth on a given matter that they may justifiably act on that
insight rather than defer to the contrary judgment of a legitimate
authority.It may be possible to draw
the same conclusion by arguing that Dallaire had good reason to think that
those states most closely involved in Rwandan affairs leading up to the
genocide were severely biased (e.g. the U.S. after the Somalia fiasco) or
suffered from conflicts of interest (e.g. France and Belgium), so that the
orders he was given did not issue from a procedure with a (sufficient) tendency
to track the truth.[20]This argument, too, nullifies legal
orders for purposes of an agent’s deliberation.

I want to emphasize that even if
Dallaire had no reason to obey U.N., Belgian, etc., orders not to intervene in
Rwanda, it does not follow that, morally, he ought to have given a command to
intervene.Various other considerations
might have entailed the immorality of such a command; for example, the belief
that many of the U.N. troops in Rwanda would not have complied with it (even
though, morally, they should have), rendering his illegal conduct nearly
pointless.Moreover, it is possible that
even if the risks of harm arising directly from intervention would have been reasonable,
the addition of the risk of (morally unjust) punishment for having acted
illegally would have rendered intervention too costly for Dallaire and the
other soldiers in Rwanda – too costly, that is, for them to have a Samaritan
duty to intervene.My point is not to
make an all-things-considered argument for what Dallaire should have done.Rather, my aim is only to raise the
possibility that in answering this question, Dallaire should not have given any
weight to the mere fact that intervention was legally forbidden.If true, then discussions of the duty to
follow unjust orders pertaining to war must pay some (though perhaps not as
much) attention to orders not to go
to war, as well as orders to go to
war.

NOTES

[1] [See McMahan on the term ‘unjust
combatants’ – he may restrict it to those who lack a just cause for going to
war, as opposed to the larger group defined by a failure to meet the just cause
criterion or any of the other jus ad
bellum criteria.]For simplicity’s
sake, I refer throughout this paper to ‘soldiers,’ though obviously my remarks
apply as well to sailors, airmen, and other types of military personnel.

[2]Michael Walzer, Just and Unjust Wars, ---.Note that Walzer’s claim is not simply that
the typical soldier will lack the information she needs, or the skills
necessary to evaluate it.Rather, his
claim is that modern states (often deliberately) adopt policies that undermine
their subjects’ ability to reason well, so much so that we should not view them
as responsible agents when it comes to joining in a war.Of course, Walzer maintains that all
combatants remain responsible agents when it comes to the actual conduct of the
war.

[4] David Estlund, ‘On Following
Orders in an Unjust War,’ Journal of
Political Philosophy 15:2 (2007): 213-34.

[5] Estlund speaks of knowingly
wronging someone, but I find this way of speaking distracting.The question at issue is what one should do
when acting under significant, but not altogether debilitating,
uncertainty.Thus our concern is with
the combatant who has been ordered to fight in what he believes to be an unjust
war, but who also recognizes that there is more than a trivial chance that his
judgment on this matter is mistaken.For
that reason, I place the qualification ‘rightly’ in parentheses when speaking
of the soldier’s belief, since what matters is not whether his belief is in fact correct, but whether he has
reason to think that his judgment is more
likely to be correct than is the state’s.

[7] In the disproportionate sentence
variation on this example, we can imagine that the prisoner has already served
what the jailer (rightly) believes to be a period of incarceration proportionate
to his offense.

[8] Estlund mentions one other
consideration that may increase the appeal of his overall argument for
obedience to unjust orders, namely that there exist means by which the jailer
can contest the Court’s decision, and perhaps also opportunities for the jailer
to “recuse” himself from particular cases or resign his position altogether
rather than carry out what he believes to be an unjust order.I set these considerations aside here, since
the first one only postpones the issue of what to do when confronted with what
one believes to be an unjust order, at least on the assumption that the
contestation will sometimes fail, and the second one because I believe that
citizens and officials of a legitimate state have no moral right to conscientious
objection (selective or otherwise), though a compassionate and merciful state
may exempt them from legal obligations they perceive to be unjust.

[9] In some rare cases, it may be
that the jailer’s disagreement with the jury is a purely factual one, and that
he does have a justifiable claim to know better than the jury what the facts of
the case are (meaning that they would be unreasonable to deny his epistemic
superiority on this matter).Estlund
grants that in such cases the jailer may be permitted, or even obligated, to
disregard the Court’s order, but he also claims that no analogous case is ever
likely to arise with respect to initiating a war.To this I would add that reasonable
disagreement over factual claims are quite common, especially in cases where
conclusions must be drawn on the basis of (sometimes seriously) incomplete and
even conflicting information, drawn from sources of varying and disputable
reliability.

[10] Note that Estlund’s argument is
conditional; if execution for a crime is ever a morally justifiable punishment,
then the executioner has a duty to carry out such a sentence even if he thinks
it unjustified in the particular case at hand.Estlund also argues compellingly against those who would distinguish
between punishments that should be meted out even when the official charged
with doing so believes it to be unjust and those that should not.

[11] The notion of reasonableness I
employ here involves judgments made under what Rawls labels the burdens of
judgment, “where it is not to be expected that conscientious persons with full
powers of reason, even after free discussion, will arrive at the same
conclusion” (John Rawls, Political
Liberalism, (New York: Columbia University Press, 1995): 58).

[13] Moreover, as I argue below, it
is by no means clear why soldiers should confine themselves to the judgments
issued by their legal superiors.

[14] Estlund might not be bothered by
this implication if he did not claim that only democratic states can enjoy
legitimate authority, which he at least appears to do.See Estlund, ‘Following Orders,’ 224.

[16] This depiction of events draws
on Romeo Dallaire, Shaking Hands with the
Devil: The Failure of Humanity in Rwanda (Toronto: Random House Canada,
2003), especially pp. 141-51, and Philip Gourevitch, ‘The Genocide Fax,’ The New Yorker, May 11th 1998, p.42-6.

[17] Dallaire was also instructed to
share his beliefs regarding an impending genocide with the Belgian, French, and
U.S. ambassadors to Rwanda, a point I return to below.

[18] My claim is that the facts cited
in the text would have provided General Dallaire with evidence to support the judgment that no one could reasonably deny
the existence of a Samaritan duty to prevent genocide, not that these facts (in
international law terms, practice and opinio
juris) madeit the case that there is a Samaritan duty to prevent genocide.

[20] In discussing why the U.N. and
its member states did so little to prevent the Rwandan genocide, or to stop it
once it began, Iqbal Riza claims that all discussions of it took place under
the shadow of Somalia – meaning, especially, the U.S. experience in Somalia and
the commitment of the Clinton administration at that time not to get involved
in any interventions or peacekeeping (at least in Africa).